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October 16, 2014

"Risk and Needs Assessment: Constitutional and Ethical Challenges"

The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:

Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement.  The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs.  Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.

Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics.  The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law.  In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.

The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate.  Any option comes with significant consequences.  Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices.  Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.

October 16, 2014 at 10:38 AM | Permalink


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Again, the problem manifests itself in three different ways. First the person in question committed a crime. Second, that crime is the core part of a criminal offense. Finally the person in question may have a substantial risk of committing another crime. The state's plan for correcting the problem should respond to each. Just don't dumb-down the problem.

Posted by: Tom McGee | Oct 16, 2014 3:20:58 PM

Tom McGee:
What do you mean when you say "that crime is the core part of a criminal offense"?

Posted by: ? | Oct 16, 2014 9:41:14 PM


Crimes are composed of elements; crimes are wrong. We penalize people for committing crimes. Criminal offenses have a crime at their core, plus one or more bad attributes. By the way, "criminal offense" is a modifier-head conceptual combination. We punish people who commit criminal offenses.

Posted by: Tom McGee | Oct 16, 2014 11:49:25 PM

Thanks Tom.
Unfortunately, I find your taxonomy rather taxing and redundant. Let me explain. I agree crimes are wrongs. However, as far as the law is concerned there are both criminal wrongs and civil wrongs. Of course, there are other wrongs i.e., thing that are morally wrong but not recognized as a civil or criminal law requiring redress. I also agree that Anglo-Saxon society penalizes people for committing crimes -- that same society also penalizes people for committing civil wrongs aka torts. My taxonomy differs in that I recognize that crimes and criminal offenses are the same thing. Seems to me that wrongs can have a crime at their core or can have a civil wrong at their core plus one or more bad attributes. The example that comes to mind is murder. A person can commit a murder. That person can go to trial and be found not guilty of murder and not be criminally punished. Following that not guilty verdict that person can be sued for civil murder and be monetarily punished if found liable, using a lesser burden of proof. In such a case, both criminal and civil murder have a death at their core. We punish people who commit both criminal and civil offenses. My point is saying something manifests itself as "crime" and saying the "crime" is a core part of criminal offense is circular and redundant. It might be more instructive to say that wrongs against society can have either a crime at their core or a civil violation at their core. Thus one can talk in terms of exclusive civil wrongs, exclusive criminal wrongs, and those actions that have both a civil and criminal wrong components when looking at modifier-head conceptual combinations. As you can see I am looking at this issue as a lawyer not a psychologist.

Posted by: ? | Oct 17, 2014 9:01:21 PM


Thanks for your thoughts. As I see it the problem is antisocial behavior. I come at this from a sociological point of view. This problem manifests itself in three different ways, which unfold over a period of time. First, the problem manifests itself as a crime. At that point the problem is not fully knowable. After the problem becomes fully knowable, it manifests itself as a criminal offense. As a crime it is wrong; as a criminal offense it is both wrong and may be bad, depending on the circumstances . If it is wrong, but not bad we call it a strict liability crime. Over time the problem may manifest itself as a risk that the offender will commit another crime. In other words, the problem is a moving target. That's the way the world really works.

I think that what has happened is that the problem is very complex, and results in a cognitive over-load. As a result, decision-makers dumb-down the problem. Cognitive scientists call this "substitution". Decision-makers focus on heuristic problems, not the target problem. Poorly understood problems result in poorly developed responses.

Posted by: Tom McGee | Oct 20, 2014 2:14:44 PM

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